Glossary

The two categories of information courts had previously recognized as comprising materials that could be withheld from disclosure under federal Freedom of Information Act Exemption 2. Exemption 2 permits an agency to withhold from disclosure those materials that are "related solely to the internal personnel rules and practices of an agency." Internal agency matters of a trivial nature -- those in which the public could not reasonably be expected to hold an interest -- are referred to as "Low 2," while internal agency matters the disclosure of which would create the risk of circumvention of legal requirements were referred to as "High 2" records. In its 2011 decision in Milner v. Department of the Navy, the U.S. Supreme Court fully rejected the "High 2" reading of Exemption 2, and it therefore can no longer be relied upon by agencies.

An office within the National Archives and Records Administration established to mediate disputes between federal Freedom of Information Act requesters and federal agencies, issue advisory opinions, review agencies' FOIA procedures and compliance, and make FOIA-related policy recommendations to Congress and the President. It came into existence as a result of 2007 amendments to the federal FOIA. Its services are free to the public, but FOIA dispute service recommendations are non-binding on agencies.

Senate Judiciary Committee discusses transparency, FOIA

Transparency and government adherence to the federal Freedom of Information Act was under scrutiny at a U.S. Senate Judiciary hearing Tuesday morning.

Testimony was presented in two panels by both government officials and private citizens. Titled “The Freedom of Information Act: Safeguarding Critical Infrastructure Information and the Public's Right to Know,” the committee explored the way FOIA requests have been handled by the government, particularly the Obama administration, and if additional exemptions were necessary for critical infrastructure.

“I worry that since Sept. 11, there’s been an overuse of the secrecy stamp,” committee chairman Sen. Patrick Leahy (D-Vt.) said. “Secrecy can come at an unacceptable price for the public.”

Sen. Chuck Grassley (R-Iowa) said that despite President Barack Obama’s stated commitment to transparency in government, there has been little change in the culture of the government.

“I find it difficult to measure what [Obama] said he wanted to do and what has actually materialized,” Grassley said. “There’s a complete disconnect between the president’s grand proclamation and the president’s appointees.”

Grassley said he was particularly disappointed with the Department of Homeland Security’s handling of FOIA requests and allegations of political obstruction, calling government secrecy “disturbing.”

The National Security Archive, an organization that advocates for transparency, awarded the Department of Justice its annual "Rosemary Award" for exceptionally poor compliance with open government mandates. However, Melanie Pustay, director of the Office of Information Policy, said the department had a 93 percent release rate of records requests, with most of those records being released in full, last year.

Leahy asked Miriam Nisbet, director of the Office of Government Information Services, to identify which government agencies are performing the best and the worst at processing FOIA requests.

Nisbet said one of the best agencies was the Department of Interior, which made significant improvements this year, including reducing its FOIA request backlogs. When pressed by Leahy to identify the worst agencies, Nisbet declined to give specifics.

“I think there are a number of agencies that are working really hard,” she said.

Leahy also questioned Nisbet about legislative changes requested from OGIS in the OPEN Government Act of 2007, which he said he had not seen. The changes were submitted to the Office of Management and Budget for review over a year ago, according to Nisbet, but she was unsure of their status.

“My question is who’s not following the law?” Leahy said. “I think if recommendations are made a year ago, even if the mail is being kind of slow, I’m happy to drive down [to OMB] and pick it up.”

The committee next focused on obtaining critical infrastructure information under FOIA.

Retired U.S. Marine Corps Master Sgt. Jerry Ensminger said he ran into problems when he tried to receive information from the Marine Corps about possible contaminated water at Camp Lejeune, a military base in North Carolina. Ensminger’s daughter, who lived on base, was diagnosed with leukemia at age 6 and died a few years later.

“Little did I realize it would be so hard getting the truth out of an organization that prides itself on honor and integrity,” he said.

He suggested Congress provide narrow definitions for what would constitute exempt critical infrastructure information in any proposed legislation. In March 2011, the Supreme Court provided a narrow definition for Exemption 2 in Milner v. Department of the Navy, ruling that only matters “related solely to the internal personnel rules and practices of the agency” are eligible for protection under that exemption. The ruling rejected the broader "High 2" reading of the exemption that existed for roughly 30 years.

Pustay said the narrowing of Exemption 2 has forced agencies to search for other exemptions in order to withhold once-protected information.

Paul Rosenzweig, a lecturer at George Washington University School of Law and a visiting fellow at The Heritage Foundation, spoke about FOIA and cybersecurity, noting that private firms engaged in cybersecurity do not fall under the scope of FOIA because they are privately held companies. He said there could be room for government oversight in terms of what information is obtained from the private industry, but alleged in his written testimony that public disclosure of cyberthreats is "dangerous" because it "risks use of that information by terrorists and, in turn, draws a roadmap of which threats are not known."